Serious, Reversible Error Found In Nearly 7 out of 10 Capital Cases in 23 Year Period

A groundbreaking study was released today, which examined every capital conviction and appeal between 1973 and 1995 (nearly 5,500 judicial decisions). By moving beyond individual cases, this report, entitled A Broken System: Error Rates in Capital Cases, reveals a death penalty system collapsing under the weight of its own mistakes.

Nationally, during the 23-year study period, the overall rate of prejudicial error in the American capital punishment system was 68%. * (In other words, courts found serious, reversible error in nearly 7 out of every 10 of the capital cases that were finally reviewed during this period.)

Professor James S. Liebman of the Columbia Law School, who conducted the study, states, "American capital sentences are persistently and systematically fraught with serious error. Indeed, capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving grave doubt whether we do catch them all."

The study found that the errors that lead courts to overturn capital sentences are not mere technicalities. The three most common errors are: (1) egregiously incompetent defense lawyers (37%); (2) prosecutorial misconduct, often the suppression of evidence of innocence (19%); and (3) faulty instructions to jurors (20%). Combined, these three constitute 76% of all error in capital punishment proceedings.

This amount of error imposes terrible costs on victims' families, the innocent, taxpayers, and the judicial system. Together, they undermine the finality, retribution and deterrence that are the reasons usually cited for having a death penalty.

Liebman's central findings include:

High error rates lead innocent persons to be sentenced to die. The study of post-reversal outcomes reveals that 82% of those whose capital judgments were overturned due to serious error were given a sentence less than death after the errors were cured on retrial. Seven percent were found to be not guilty of the capital crime.

Catching so many errors takes an average of nine years from death sentence to execution. In most cases, death row inmates wait for years for the lengthy review procedures needed to uncover all this error. Then, their death sentences are reversed.

High error rates persist over time. More than 50% of all cases reviewed were found to be seriously flawed in 20 of the 23 study years, including 17 of the last 19. In half the years, including the most recent one, the error rate was over 60%.

High error rates exist across the country. More than 90% of states that administer death sentences have overall error rates of 52% or higher. 85% have error rates of 60% or higher. Three-fifths have error rates of 70% or higher. (State-by-state reports cards are available.)

"Even a reversal rate of 18% in Virginia indicates that one of five convictions was achieved erroneously. No one should take comfort in a percentage that high," declared William Broaddus, former Virginia Attorney General and a member of the National Committee to Prevent Wrongful Executions.

"The death penalty system is one in which lives and public order are at stake, yet for decades has been fraught with more mistakes than we would tolerate in far less important activities," Liebman explains. "Erroneously trying capital defendants the first time around, operating the multi-tiered inspection process needed to catch the mistakes, warehousing thousands under costly death row conditions in the meantime, and having to try two out of three cases again is irrational."

Since joining the Columbia faculty in 1986, Professor Liebman has written extensively about capital punishment; co-authored the leading American treatise and a number of articles on habeas corpus law; and argued four major capital or habeus corpus appeals in the Supreme Court.

In addition to Professor Liebman, authors of the current report include: Jeffrey Fagan and Valerie West.

To obtain a copy of the report or arrange an interview with Professor Liebman, please call Laura Burstein at (202) 822-5200.

* To be clear: (1) This is not a sample. It counts all final decisions between 1973 and 1995. (2) This study counts only final decisions reversing state capital verdicts; if a judicial decision was not final because a higher court with a right to review it might disagree with it and reinstate the verdict, the decision was not counted. (3) Unlike some proposed numbers, which make the misleading assumption that capital verdicts that have not yet been inspected are free of serious error, the error rates reported here count only capital verdicts that have been fully reviewed by the courts. ( Back to text )